Essays by Michael Madison, Professor of Law at the University of Pittsburgh

A Hard Thing to Do

This post concludes a long response to a terrific recent piece by Mark Cohen, in which he critiqued law schools for failing to respond appropriately and systematically to an emerging “skills gap” between baseline legal education and the needs of the technology-dependent legal market.

The first part of the response, from two weeks ago, agreed with the gist of the critique but introduced the idea that the critique opens a broader window on the relationship between legal education and the market for lawyers. The second part of the response, from last week, explored the meanings of the “law factory” metaphor and linked it to the uses and limitations of “the legal industry” as an expanded metaphor.

That second part concluded with a series of mostly rhetorical questions about what the market might want and what the market might need. How are we to know, and when, and who are we to ask the questions, anyway?

Here’s the third part, the payoff.

Complaining about how hard it can be to figure out what the market wants and needs sounds extremely stick-in-the-mud and get-off-my-porch. My point is exactly the opposite. I’ll paint with a bolder brush. The kinds of tech literacy skills that Mark Cohen describes as being in demand have little specifically to do with law, law practice, the legal industry, or legal education. They also have little specifically to do with business, engineering, medicine, public health, social work, or any of a myriad of other professional disciplines on offer on many university campuses. My bet is that they are increasingly basic to every profession – and then some.

So in some respects Mark Cohen’s complaint, which I agree is accurate in its details, is directed to the wrong problem and to the wrong audience. The problem is not that legal education is doing it wrong. Modern legal education is doing what modern legal education has turned itself into, Langdell and the law factory and all, and what modern legal education is almost completely incapable of avoiding, other than at the edgiest of margins. Modern legal education is a problematic hybrid of scholarly ambition, professional training, ideological purities, and self-interested protectionism. It’s easy to see the logic of seeing law schools as part of the legal industry, which is a problematic hybrid of many of those things, as well.

Pay attention, though, to that edgiest of margins that I mentioned briefly, where my back-of-mind colleagues (complaining in Part I, I imagined, that Mark Cohen has missed their law schools) are pointing out that they are, too, innovating in modern ways. They are, at the edgiest of margins, right about what they’re teaching (many new skills, some old skills) and about the fact that law schools are not, on the whole, teaching those things.

Deans love initiatives like those edgy margins, because they’re marketable both on campus (they play to the optics and politics of collegiality and cross-campus collaboration) and off (they’re enticing to some prospective students, and maybe they’re catnip somehow to reputation shapers). They keep some faculty more engaged than they otherwise would be, and they allow the school to recruit a handful of innovative-and-entrepreneurial-program developing-teaching energy to the school. Those people usually come on board without the dean’s losing any expensive tenure lines and corresponding long-term commitments. And it’s possible (likely?) that law students who hang around those edgy margins have given themselves a leg up in today’s employment market.

But it is the rare law dean and more important, the rare university provost, who will green-light and fund a pathway for that edgy marginal case to scale up and endure to the point where it threatens to become the dominant educational paradigm. Deans come and go. Innovators and edge-pushers are often succeeded by retrenchers and consolidators. And the reverse. Faculty governance waxes and wanes. It’s stronger at some law schools and weaker at others. It’s difficult for me to imagine a full faculty supporting the sort of outside-in transformation at the law school level that Mark Cohen recommends, and difficult to imagine the political and institutional capital existing at higher levels, over time, to see it through to durable impact. Tenured faculty are apt to say: that’s not who we are. The provost is apt to say: but alumni, or but the bar examiners, or but the university’s glorious scholarly reputation and tradition. The exception proves the rule, the law school where the edgy innovation has gotten so successful and built so much momentum that the dean and faculty (and provost) have had no choice but to grow it to a much larger scale. Not as an innovation-themed version of the standard program, but as something genuinely different. Out with Langdell. Hint: to the best of my knowledge, this hasn’t happened. Much as I would love to see it done.

So the edgy margins are symptoms rather than solutions, just like the Langdellian paradigm to which they are attached. Why? The edgy margin inside the law school does not disrupt the modern law factory. It’s a product of the law factory. It doesn’t solve the problem, because it speaks to the wrong problem, and to the wrong audience.

The right problem is this. Higher education has begun to be exposed for its deep flaws, on a much higher and broader scale. The edgy margin is a symptom; Langdellianism is a symptom; legal education today is a symptom. First trace the history of universities, particularly in the late 19th century and in the post-WWII period; then weave in the concurrent emergence and definition of academic disciplines and modern professions and professional schools; and finally add a layer consisting of the ways in which professional and academic roles, rules, and hierarchies still put some things in the “law” sandbox, other things in the “engineering” sandbox, and other things in the “public health” sandbox, and so on.

Modern economies and societies are quickly teaching us that these may be the wrong sandboxes. Or (and?) maybe there is only one box, with different kinds of sand mixed up in it. “Inter”-disciplinary and “cross”-disciplinary and “trans”-disciplinary teaching and research are still, at their cores, disciplinary, based strongly on inherited intellectual traditions and practices. The sort of things that Mark Cohen advocates for in law schools – data analytics, problem solving and design – have no single disciplinary home. (I’ll add to his list one of my favorites, leadership, which I wrote about here.) The university is a medieval fortress, with metaphoric moats and gates wherever you turn, created to domesticate domain-specific knowledge and channel it into forms where it might be enlarged and passed down from one generation’s elites to the next. That basically medieval form, while still magnificent in many respects, is poorly suited to today’s complex worlds. The legal industry is scaled-up “market capitalism meets the rule of law,” yet we’re confronted at every turn with wicked problems, small and large. That’s not “we” as in today’s senior professors; it’s “we” as in the next generations of new professionals.

In sum: How can our educational systems train
people effectively to participate in those worlds as professionals, or even as
citizens, when they’re running around with training — epistemological, ethical,
and competency-based frameworks — largely derived from 19th century carvings of
the professional map?

Why have a law school in its current form at
all?

There is no single or simple answer to that
question, but it’s clear – to me, at least, and perhaps to others – that
addressing a “skills gap” in legal education, while helpful in a limited sense,
doesn’t do it.

Here is one entirely different and entirely speculative
approach:

Why not have a one- or two-year initial, core “professional skills” curriculum in the university accessible to and required by a batch of prospective lawyers and engineers and public health professionals and (pick additional fields to suit). It doesn’t have to be in the university. If it’s in the university, it doesn’t have to exist at or only at the professional education level. After that initial grounding, sub-groups would hive off for specialized training as they wish. Imagine a larger-scale and broadly inclusive curriculum in the mode of modern medical education – fundamentals first, specialties later. Imagine versions of this curriculum as continuing education, post-graduation or post-certification.

The three-year JD, for example, would be a required first year of general professional skills followed by two years of law-specific applications. (Don’t save the “legal reasoning” material for later, or don’t save all of it for later. Lawyers aren’t the only professionals who need to engage in close critical analysis of text or to understand bodies of authority organized hierarchically, and lawyers might learn a thing or two from how other fields approach those questions.) Or sub-groups could continue on a multi-field path, with new certifications and credentials to match. We could scale that core “professional skills” curriculum across the university boundary and into the community, online and face to face, so that it is accessible (as Mark Cohen suggests, in a different setting) to professionals across their careers.

All of that and more that we might imagine – don’t let me stop you, and I’ve given only the briefest account of this idea — involves much more change management than curriculum revision in a law school or any other professional school. (By the way, it should not come as a surprise to lawyers and law professors that many of their professional colleagues in other fields are now wrestling with precisely the same questions that law schools are.) That’s one big reason why so much attention gets focused on new specialty courses and edgy margin cases. Universities have tried before, and mostly failed, to buck the inertia represented by ancient disciplines and reconstitute academic fields. Creating new educational and professional paradigms is really, really hard.

The sketch I’ve supplied above represents a big and bold gamble on a premise with only modest data to back it up so far – that mixing up professional training and re-imagining disciplinary definitions and boundaries is likely to generate better outcomes (measured how?) than professional training generates today.

So I’m hardly against the specialty courses and edgy margin cases. Law schools and law professors should and will do what they can, often, to help their students. Like Mark Cohen, though for the different reasons above, I have modest expectations regarding how those investments might pay off. I have similarly low expectations for equivalent efforts in the private sector, elsewhere in the nonprofit world, and in governments. Marketing hypee aside, many of them are relatively low risk, relatively low reward. I can’t make the law factory or the legal industry metaphors go away, and in certain respects — today’s students, starting jobs very soon — I don’t want them to. At least some of what’s happening in that industry today is motivated by the right instincts, that a modestly disrupted and then modestly reengineered legal system can do better for people in society than today’s system can.

I’m after bigger, more transformative change. I’d rather move in the direction of bigger systemic change (paradigm change?), beyond the law factory, which is much more likely to have a larger impact over a larger range of people over a large time frame, and which has much to do with a bet on what the world needs (people who can identify and deal with big hairy problems, some of which we can see right now and some of which we can’t) as well as smaller day to day problems, and little to do with what the market needs. The idea is not post-professional, though. The point is not at all that emerging technology means that we don’t need the professions that we have today, or that we don’t need experts and expertise. We’ll need them, and we should train them. Just not as we have done for the last 100 years, and not, in the case of law, by scaling the law factory up to the legal industry. Law schools, and the universities that most of them inhabit, can do better.